ROCCA V. THOMPSON
| Decision Date | 19 February 1912 |
| Court | U.S. Supreme Court |
ERROR TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA
Instructions of the head of a department must be read in light of the statute directly bearing on the subject, and so held that instructions of the Secretary of State to consuls in regard to administering effects of citizens of the United States dying in foreign lands must be read in the light of § 1709, Rev.Stat.
There is no federal probate law, but right to administer property left by a foreigner within the jurisdiction of a state is primarily committed to state law.
Quaere whether it is within the treaty-making power of the national government to provide by treaty with foreign nations for administration of property of foreigners dying within a state, and to commit such administration to consuls of the nation to which deceased owed allegiance.
"Intervene in the possession and administration of the deceased" as the expression is used in the Argentine Treaty of 1853, is to be construed as permitting the consul of either contracting nation to temporarily possess the estate of his national for the purpose of protecting it, before it comes under the jurisdiction of the laws of the country, or to protect the interests of his national in an administration already instituted otherwise than by him.
Under the Argentine Treaty of 1853, a consul has not the right to the original administration of the estate of a deceased national to the exclusion of one authorized by local law to administer the estate.
While treaties are to be liberally construed, they are to be read in the light of conditions existing when entered into with a view to effecting the objects of the contracting states.
The law of the Argentine Republic, as brought to the attention of this Court, does not give to consuls of foreign countries the right to administer the estates of deceased nationals, but only to appoint an executor, which appointment is to be communicated to the testamentary judge.
Quaere whether the most favored nation clause included in the Treaty with Italy of 1878 carries the provisions of the Argentine Treaty of
1853 in regard to the administration by consuls of the estate of deceased nationals.
In California, the public administrator is entitled to administer the estate of an Italian citizen dying and leaving an estate in California, in preference to the Consul-General of the Kingdom of Italy, and so held after construing the provision of the Treaty of 1878 with Italy, and that of 1853 with the Argentine Republic.
157 Cal. 552 affirmed.
The facts, which involve the construction of the provisions of the Treaty of 1878 with Italy and that of 1853 with the Argentine Republic in regard to the right of consuls to administer estates of their respective natives dying in the United States, are stated in the opinion.
This is a writ of error to the Supreme Court of the State of California to review a judgment in which that court held that the public administrator was entitled to letters of administration upon the estate of an Italian citizen dying and leaving an estate in California, in preference to the Consul General of the Kingdom of Italy.
The facts are briefly these: Giuseppe Ghio, a subject of the Kingdom of Italy, died intestate on the 27th day of April, 1908, in San Joaquin County, California, leaving a personal estate. Ghio resided in the State of California. His widow and heirs at law, being minor children, resided in Italy. Plaintiff in error, Salvatore L. Rocca, was the Consul General of the Kingdom of Italy for California, Nevada, Washington, and Alaska territory.
Upon the death of Ghio, Consul General Rocca made application to the superior court of California for letters of administration upon Ghio's estate. The defendant in error, Thompson, as public administrator, made application for administration upon the same estate under the laws of California. The superior court held that the
public administrator was entitled to administer the estate. The same view was taken in the Supreme Court of California. 157 Cal. 552. From the latter decision, a writ of error was granted, which brings the case here.
The Consul General bases his claim to administer the estate upon certain provisions of the Treaty of May 8, 1878, between Italy and the United States. Arts. XVI and XVII read as follows:
While Article XVI only requires notice to the Italian consul or consular agent of the death of an Italian citizen in the United States, Article XVII gives to consuls and similar officers of the Italian nation the rights, prerogatives, immunities, and privileges which are or may be hereafter granted to an officer of the same grade of the most favored nation. It is the contention of the plaintiff in error that this favored-nation clause in the Italian treaty gives him the right to administer estates of Italian citizens dying in this country because of the privilege conferred upon consuls of the Argentine Republic by the treaty between that country and the United States of July 278 1853, Art. IX of which provides:
From this statement of the case it is apparent that the question at the foundation of the determination of the rights of the parties is found in the proper interpretation of the clause of the Argentine treaty just quoted. The question is: does that treaty give to Consuls of the Argentine Republic the right to administer the estate of citizens of that Republic, dying in the United States, and a like privilege to Consuls of the United States as to citizens of this country, dying in the Argentine Republic? The question has been the subject of considerable litigation, and has been diversely determined in the courts of this country which have had it under consideration.
The surrogate of Westchester County, New York, in two cases, In re Fattosini's Estate, 67 N.Y.S. 1119, and In re Lobrasciano's Estate, 77 N.Y.S. 1040, has held that the Treaty of Italy of 1878, in the most favored nation clause, carried the benefit of the Argentine treaty to the consuls of Italy, and that the Argentine conferred the right of administration upon the consuls of that country. In In re Wyman, 191 Mass. 276, the supreme judicial court of that state, as to Russian consuls, under the most favored nation clause in the Russian treaty, followed the surrogate courts of Westchester County, observing that the cases were well considered and covered the entire ground. The Supreme Court of Alabama, in Carpigiani v. Hall, 55 So. 248,
followed the decisions in New York and Massachusetts just referred to, and in In re Scutella's Estate, 129 N.Y.Supp. 20, the appellate division of the Supreme Court of New York pursued the same course.
A contrary view was expressed by the Surrogate Court of New York County in In re Logiorato's Estate, 69 N.Y.S. 507, and by the Supreme Court of Louisiana in Lanfear v. Ritchie, 9 La.Ann. 96.
An examination of the cases which have held in favor of the right of a Consul General to administer the estate, to the exclusion of the public administrator, makes it apparent that the Lobrasciano case, which is the fullest upon the subject, is the one that has been followed without independent reasoning upon the part of the courts adopting it.
In that case, the right of a consul to administer the estates of deceased citizens of his country is based not only upon the interpretation of the treaties involved, but as well upon the law of nations giving the right to consuls to administer such estates. In the opinion, some citations are made from early instructions of Secretaries of State emphasizing the right and duty of consuls to administer upon the effects of citizens of the United States dying in foreign lands.
But these instructions must be read in the light of the statute of the United States, § 1709, Rev.Stat., * which,
while it recognizes the right of consuls and vice consuls to take possession of the personal estate left by any citizen of the United States who shall die within their consulates, leaving there no legal representative, partner, or trustee, to inventory the same, and to collect debts, provides in the fifth paragraph of the section that, if at any time before the transmission to the United States Treasury of the balance of the estate, the legal representative appears and demands his effects in the hands of the consul, they shall be delivered up, and he shall cease further proceedings, and the duties imposed are where "the laws of the country permit."
The consular...
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